IN THE CASE OF:	  

		BOARD DATE:		  24 November 2009   

		DOCKET NUMBER:  AR20090009974 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his record be corrected by voiding his 
2 February 2005 discharge from the United States Army Reserve (USAR) and showing that he was instead transferred to the Retired Reserve on that same date.  

2.  The applicant states, in effect, he should have been placed in the Retired Reserve so he could continue to receive the pay increases he is entitled to.  He claims he never received a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) or told he would be transferred to the Retired Reserve.  

3.  The applicant provides the following documents in support of his application:  NGB Form 22, dated 30 April 1998; Army National Guard (ARNG) Discharge Orders, dated 31 March 1998; Revocation of ARNG Discharge Orders, dated      1 April 1998; and ARNG Discharge Orders, dated 1 April 1998.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that previously serving on active duty in the Regular Army and in the U.S. Army Reserve (USAR), the applicant enlisted in the ARNG on 12 August 1976.  

3.  On 22 September 1995, the State of Indiana, Military Department, Office of The Adjutant General, published a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter), notifying the applicant he had completed the required years of service necessary to qualify for retired pay at age 60.  

4.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) in the applicant's record shows that on 8 June 1997, the applicant extended his enlistment for an additional 6 years, which established his new expiration of term of service (ETS) as 11 August 2003.  

5.  On 30 April 1998, the applicant was honorably discharged from the ARNG, in the rank of sergeant (SGT), and transferred to the USAR Control Group (Reinforcement).  The NGB Form 22 he was issued at the time shows he completed a total of 25 years, 7 months, and 1 day of service for pay purposes.  

6.  United States Army Human Resources Command, St. Louis, Missouri
(HRC- St. Louis) electronic records show his ETS expired on 11 August 2003.  It further shows that his honorable discharge was directed in Orders D02503715, dated 2 February 2005, and that this was an involuntary action resulting from the expiration of his ETS.  The orders are not available.  There is no indication that the applicant had any contact or performed any service while in the Individual Ready Reserve (IRR) between 30 April 1998, the date of his discharge from the ARNG and 2 February 2005, the date of his discharge from the USAR, or that he ever attempted to extend his service obligation beyond his 11 August 2003 ETS. 

7.  HRC-St. Louis Orders P06-907560, dated 23 June 2009, directed the applicant's retirement and placement on the Retired List, in the grade of SGT, effective 9 November 2008.  

8.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, 

remove, or transfer USAR Soldiers.  Chapter 7 contains guidance on removal from active status and paragraph 7-1a indicates that Soldiers removed from active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was transferred to the Retired Reserve instead of being discharged on 2 February 2005, was carefully considered.  However, the evidence of record confirms he was discharged from the USAR in accordance with applicable regulations based on his failure to extend his ETS or request transfer to the Retired Reserve upon his ETS.  There is no evidence to suggest he ever requested or was denied the option of transferring to the Retired Reserve prior to his ETS. 

2.  Further, the applicant is advised that the continuation of pay increases for members serving in the Retired Reserve are not automatic and are based on the continued availability of those members for recall to an active status in emergency situations.  Therefore, given there is no evidence he was unjustly denied the opportunity to request transfer to the Retired Reserve and because has not been available for recall since his discharge, it would not be appropriate to correct his record solely for the purpose of entitling him to benefits he did not earn.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  __X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 

are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20090009974



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ABCMR Record of Proceedings (cont)                                         AR20090009974



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